R v Smith (SKCA)
[November 22/19] Charter s.8 - The Limits of Search Incident to Arrest - 2019 SKCA 126 [Reasons by Caldwell J.A. with Jackson and Leurer JJ.A. Concurring]
AUTHOR’S NOTE: The fact that someone is arrestable for an offence does not make them searchable for all types of potential evidence, nor can a safety search be expanded beyond reasonable limits. The SKCA in this case provides a useful summary of the law in the area and an application to a situation that happens quite often - the seizure and unlawful search of a purse.
 In September 2015, Ms. Smith was subject to an outstanding warrant for her arrest on charges of possession of stolen property and obstruction [Arrest Warrant]. She was also under surveillance at that time as a person of interest because she was the girlfriend of the prime suspect in a homicide investigation. In furtherance of that investigation, the police had obtained a general warrant authorising them to “covertly remove” any mobile device found on Ms. Smith and to forensically examine it [General Warrant].
 On September 16, 2015, the police located Ms. Smith, who was accompanied by two males. Constable Gullacher approached the group and asked them to stop so he could speak with them. Ms. Smith and her two companions fled. Officers caught Ms. Smith and one of her companions, but her second companion, who police believe was her boyfriend, hopped a fence and escaped arrest. Once the police had detained the companion, later identified as her brother, they released him but he waited around anyway. Ms. Smith was uncooperative in her arrest. Constable Drabinasty believed Ms. Smith was impaired by some drug.
 Ms. Smith had a purse with her at the time of her arrest. In the course of her arrest, the police handcuffed her and took her purse from her. Ms. Smith’s brother asked the arresting officers if he could take the purse since he was there. Ms. Smith also told the officers she wanted to deliver the purse to her common law partner. The police refused these requests. Constable Drabinasty searched the purse at the site of the arrest. In it, he located a black camera case, which he opened. The camera case contained four baggies of methamphetamine, totaling 2.7 ounces. In his testimony, Constable Drabinasty stated he searched the purse for two reasons: (i) to locate potential weapons that could harm him or anyone else; and (ii) to locate Ms. Smith’s cellphone pursuant to the General Warrant.
The Safety Search Power
 I begin with the observation that both the Crown, at least initially, and the trial judge appear to have merged the common law police power of search incident to arrest (Cloutier v Langlois, 1990 CanLII 122 (SCC),  1 SCR 158) with the power of police officers to conduct a so-called safety search in the absence of an arrest (as described in the majority reasons in R v MacDonald, 2014 SCC 3 (CanLII),  1 SCR 37). In R v MacDonald, LeBel J., for the majority of the Court, on the issue of when a safety search will be considered lawful, wrote:
 But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16 (CanLII),  1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” (Mann, at para. 41).
 ... In short answer to these issues, I am not persuaded the law in R v MacDonald was inapplicable in the circumstances of this case, although the law of search incident to arrest is certainly a better fit with the facts. Regardless, I find the trial judge did err by relying on the criteria for a safety search under R v MacDonald when delineating the scope of the safety objective of a search incident to arrest, thereby holding the police to a higher standard than was required under the applicable law. Nonetheless, I also find that the power of search incident to arrest is not as broad as the Crown contends. I turn now to that issue.
The Power to Search Incident to Arrest
 ....However, L’Heureux‑Dubé J.’s reasons in Cloutier v Langlois are acknowledged as setting out the general framework for interpretation of the post-Charter power (at 180–181):
In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or provide evidence against him. The common thread in this line of authority is the objective of guaranteeing safety and applying the law effectively. While the existence of the power is accepted, there seems to be some uncertainty as to its scope. While at common law the British courts did not impose reasonable grounds as a prerequisite to the power to search a person lawfully arrested, neither have they gone so far as to recognize a power to search as a simple corollary of arrest. The Canadian courts, on the other hand, do not seem to have hesitated in adopting this latter approach.
 Notably, L’Heureux-Dubé J. described the type of search contemplated by the power as being a frisk search, explaining how that type of search balanced the competing interests at play in an arrest. She then observed that, while the power to frisk a detainee upon arrest did not depend on the existence of reasonable grounds, it was not without its limits (at 185–186):
In this regard a “frisk” search is a relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force is applied. The duration of the search is only a few seconds. Though the search, if conducted, is in addition to the arrest, which generally entails a considerably longer and more sustained loss of freedom and dignity, a brief search does not constitute, in view of the objectives sought, a disproportionate interference with the freedom of persons lawfully arrested. There exists no less intrusive means of attaining these objectives.
I agree with the opinion of the Ontario Court of Appeal, as stated in Brezack, Morrison, Miller, supra, that the existence of reasonable and probable grounds is not a prerequisite to the existence of a police power to search. The exercise of this power is not however unlimited. Three propositions can be derived from the authorities and a consideration of the underlying interests.
1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives.
2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.
A search which does not meet these objectives could be characterized as unreasonable and unjustified at common law.
 The Supreme Court has, since Cloutier v Langlois, expounded on its understanding of the scope of the power of search incident to arrest a number of times:
(a) In R v Stillman, 1997 CanLII 384 (SCC),  1 SCR 607 at para 35, the Supreme Court recognised the preservation of evidence from destruction by the detainee and the discovery of evidence could be valid objectives in a search incident to arrest, but found the power did not entitle the police to conduct an invasive search of the detainee’s person with a view to obtaining hair and buccal samples and teeth impressions.
(b) In R v Caslake, 1998 CanLII 838 (SCC),  1 SCR 51, the majority found an inventory search of a detainee’s vehicle fell outside the bounds of the legitimate purposes of search incident to arrest.
(c) In R v Golden, 2001 SCC 83 (CanLII),  3 SCR 679, the majority ....said: “a ‘frisk’ or ‘pat down’ search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person”, observing that the “mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search” (at para 94)....
(f) In R v Saeed, 2016 SCC 24 (CanLII),  1 SCR 518, a majority of the Court distinguished R v Stillman and recognised the power as extending to a penile swab search of a detainee at the police station conducted hours after arrest where the police had reasonable grounds to believe such a search would reveal and preserve evidence of the offence for which the accused had been arrested.
 Most recently, in R v Saeed, the majority of the Court confirmed the framework for the common law power of search incident to arrest in terms consistent with Cloutier v Langlois, albeit referencing R v Fearon:
 The existing general framework for a valid search incident to arrest purports to authorize a broad range of searches. It requires only that (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably (R. v. Fearon, 2014 SCC 77 (CanLII),  3 S.C.R. 621, at para. 27).
 As I see it, the issue in this appeal falls squarely under the second requirement summarised in R v Saeed. The question the Crown has put before the Court is whether the search of Ms. Smith’s purse was “truly incidental to the arrest” in the sense that it was conducted for a valid law enforcement purpose that is “related to the purpose of the arrest”. Explaining this requirement in R v Caslake, Lamer C.J.C. wrote:
 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy. See the Law Reform Commission of Canada, Report 24, Search and Seizure (1984), at p. 36. (For a more in-depth discussion, also see Working Paper 30, Police Powers - Search and Seizure in Criminal Law Enforcement (1983), at p. 160.) This means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.
 Later in his reasons, Lamer C.J.C. reiterated the primary purposes of a search incident to arrest:
 ....The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.
 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. ...At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.
 In my view, it would be contrary to the spirit of the Charter’s s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer’s belief that he or she has a legitimate reason to search is reasonable in the circumstances.
 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).
 ....The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable....
 To summarise, under R v Stillman, the Court described the valid purposes for a search incident to arrest as including: “discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice” (emphasis in original, at para 158). In oral argument, the Crown conceded the search of Ms. Smith’s purse had not been conducted for the purpose of obtaining or preserving evidence relating to the reasons for her arrest, i.e., under the Arrest Warrant, for possession of stolen property and obstruction. This concession left the Crown to argue only limited bases as justification for the search. The Crown submitted the search of Ms. Smith’s purse was conducted in furtherance of the legitimate objective of police officer and public safety. Framing the search as a “weapons search incidental to arrest”, the Crown stated the appropriate standard is whether, having regard to the totality of the circumstances, it was reasonable for the police to have searched Ms. Smith’s purse for weapons.
 ....Of course, the totality of the circumstances also includes the fact that, at the time of the search, Ms. Smith had been handcuffed and separated from her purse.
 While the Supreme Court in R v Stillman expanded the police power of search incident to arrest to include a search for items of evidence not in the immediate possession of the detainee, I am not persuaded the expanded power reaches far enough to cover searches for the purpose of officer or public safety.....
 ....the Crown proposed that the Court consider a few general factors, which the Crown has drawn from common sense concerns about police officer and public safety. It says the following factors weigh in favour of recognising a broad power to search for weapons incident to any arrest, namely:
(a) safety concerns may continue even after an arrest and after the detainee has been handcuffed;
(b) when a detainee is taken into custody, the concern for officer safety extends to officers and detention personnel at the police station;
(c) many things have the potential to be used as a weapon, including small or sharp objects, and the existence of a potential weapon is, on its own, a safety risk; and
(d) a detainee will regain possession of his or her belongings, which may include a potential weapon, when released from detention.
 I am not persuaded the Supreme Court’s jurisprudence, including paragraph 20 of R v Caslake, may be interpreted as broadly as the Crown has suggested. In that paragraph, Lamer C.J.C. was speaking about officer and public safety concerns arising directly from the possibility that a detainee might be armed. He wrote in clear terms that, “under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed” (emphasis added). This interpretation is supported by the decision in R v Golden where, as noted, the majority described the power to search for weapons incident to an arrest in terms entirely consistent with the limited scope of a frisk search (as had been contemplated by L’Heureux-Dubé J. in Cloutier v Langlois) conducted incident to the arrest of a possibly armed detainee (as had been contemplated by Lamer C.J.C. in R v Caslake). In their majority reasons, Iacobucci and Arbour JJ. wrote:
 In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons. However, a “frisk” or “pat down” search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person. Only if the frisk search reveals a possible weapon secreted on the detainee’s person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee’s person will a strip search be justified. Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search.
 While there are many reasons not to equate a strip search with the search of a purse, the relevant point I take from R v Golden is that the common law police power to search incident to an arrest does not permit the police to do anything more than conduct a frisk or pat-down search of a detainee’s person for weapons where the officer holds a reasonable concern that the detainee might have a weapon on or about his or her person. However, where the circumstances of the case or the initial body search itself reasonably give rise to a weapons-related safety concern that warrants a further, more-intrusive search, such a search may be lawfully conducted incident to the arrest.
 Of course, where an individual is arrested for a weapons-related offence, the police officer may—depending on the circumstances—have an objectively valid reason for conducting a more intrusive or expansive search for weapons because there might be “some reasonable prospect of securing evidence” related to that offence (R v Caslake at para 22). Regardless, it is clear from Cloutier v Langlois, R v Caselake and R v Golden that, when the objective of a search incident to arrest is officer or public safety, that concern must be tied directly to the risk that the detainee might be armed and might thereby pose a threat to safety.
 As such, I conclude neither the decision in R v Caslake nor any other Supreme Court jurisprudence supports the proposition that the police may, for general safety reasons, always conduct an intrusive search for weapons incident to an arrest. I agree a weapons search incident to an arrest addresses the valid objective of officer and public safety. However, in all circumstances, a search incident to arrest must be conducted for a valid objective that is truly incidental to the arrest in question. And, this is where the Crown’s proposition falls down.
Application to the Facts
 There is no suggestion here that the police believed Ms. Smith had a weapon in her purse. Moreover, it is hard to conclude the police reasonably believed the possibility Ms. Smith’s purse contained a weapon (or an object that might be used as a weapon) posed a safety risk to officers or to the public, given that they had detained her, handcuffed her and separated her from her purse. In saying this, I accept the Crown’s assertion that police officer and public safety concerns “can continue after the arrest and even after the arrestee has been handcuffed”. The Crown cited R v Duong (4 March 2005) Vancouver, 150816-3-C2 (BC Prov Ct), aff’d 2006 BCCA 325 (CanLII), 142 CRR (2d) 261, as supporting this proposition.
 In the case at hand, once Ms. Smith had been arrested, she no longer had access to her purse or, therefore, to any potential weapon it contained. By separating Ms. Smith from her purse, the police had reasonably and effectively averted any threat to safety the purse—or Ms. Smith’s access to it—presented in the context of the arrest, thereby eliminating the legal basis to search it under the common law power of search incident to arrest and under the common law safety search power (latterly, because there could be no imminent threat). There are markedly different safety risks associated with a detainee who might have a weapon hidden on or about his or her person versus a purse placed outside a detainee’s control or access that might contain a potentially harmful object.
 ....unlike R v Davis, the circumstances of Ms. Smith’s arrest did not present a continuing safety concern that made it reasonable and prudent for the police to determine what she had in her purse.
 What this argument overlooks, however, is that the searching officer also said he had searched Ms. Smith’s purse to locate her cellphone pursuant to the General Warrant—a point to which I will return later. However, it is important to remember that the common law police power to search incident to an arrest only permits the police to conduct searches that are truly incidental to the arrest in question (R v Caslake at para 19). Here, Ms. Smith had not been arrested on weapons-related offences and, once she had been isolated from her purse, any concern for safety could no longer be premised on whether there might be a potential weapon in her purse that she might use against the police or the public, or to aid in an escape. At that point, on the Crown’s argument, the safety concern became whether there might be something in the purse that could—independent of any action on Ms. Smith’s part and independent of her arrest—injure an officer or a detention staff member while they were going through her purse for inventory purposes at the police station.
 To return to core principles, the power of search incident to arrest is an exception to the general principle that a warrantless search is prima facie unreasonable (and therefore in violation of s. 8 of the Charter) and to the requirement of reasonable grounds to search. As such, the common law power is an exceptional policing tool and its exercise must be limited to searches “truly incidental” to the arrest in question. As Lamer C.J.C. noted in R v Caslake, reviewing courts must consider the motives of the police for the timing and place of the arrest and the relationship in time and place between the arrest and the search. That is, the search must be limited to areas and things both spatially and causally connected to the arrest in question—a search is not incidental to an arrest when the police are acting for purposes unrelated to the arrest.
 On the evidence, the search of Ms. Smith’s purse was neither spatially nor causally connected to her arrest. Once the police had handcuffed Ms. Smith and separated her from her purse, the search of that purse for items that might affect officer or public safety was not truly incidental to her arrest. The officer’s subjective belief that the purpose of officer and public safety would be served by the search was not objectively reasonable in the circumstances.
 Moreover, I emphasise that ancillary police powers will often provide a lawful basis for a search when there are concerns respecting officer or public safety. If there are reasonable grounds to believe a detainee’s purse contains something dangerous to a police officer or the public, the police have the power to conduct a safety search for those items (R v MacDonald). The police may also conduct a lawful warrantless search of a purse in exigent circumstances (s. 487.11). Of course, these ancillary powers require a higher level of knowledge or suspicion on the part of the police than that required under a search incent to arrest; but then, the power to search incident to arrest is an extraordinary exception to the general principle that a search without warrant is unlawful. To put it another way, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, or where an officer has a reasonable suspicion a search is necessary to prevent imminent bodily harm or death, the police already have the power to lawfully conduct the search.
The General Warrant Here
 The trial judge found the General Warrant only authorised a search of Ms. Smith’s cellphone once it had lawfully come into the possession of the police. Since the trial judge found the search incident to arrest was unlawful, he ruled the police were unable to rely on the authority of the General Warrant to justify their search for and of Ms. Smith’s cellphone. In this appeal, the Crown said the trial judge erred by grounding the authorisation to conduct a search of the cellphone under the General Warrant on the existence of an independent, legally-valid search putting the phone in their hands. The Crown provided no authority for this assertion, submitting it is strictly a question of interpreting the General Warrant.
 The General Warrant reads:
If, upon arrest of: [Ms. Smith and five other named individuals]
They are found in the possession of a cellular telephone(s), a peace officer may:
• Covertly remove the cellular telephone(s) from their personal property and using established procedures and/or software written with the capability of extracting information and data, forensically examine the cellular telephone(s).
• All information located will examined [sic], copied, photographed and/or seized accordingly, before the cellular telephone(s) are returned.
 In this case, however, the General Warrant expressly authorised the covert removal of a phone from Ms. Smith’s personal property and then authorised the police to employ investigative techniques and procedures to extract information and data from it. As such, the General Warrant could have been executed in the circumstances of a lawful arrest and lawful search. Indeed, I would go so far as to speculate that, given its covert nature, the law might well allow for it to have been executed concurrent with an inventory search and yet give rise, by reason of its authority, to evidence adducible in a trial—although I do not have to decide that point. What this means is that it cannot be said the authority to search Ms. Smith’s person or her purse for a phone is, by necessary implication, to be found in the General Warrant—i.e., unlike R v Lyons, that authority is plainly not necessary to the employment of the investigative technique or procedure authorised by the General Warrant.
 Regardless, in that s. 487.01 has been interpreted as supplementing the traditional search warrant powers found in the Criminal Code to account for new investigative techniques (see also R v Ha, 2009 ONCA 340 (CanLII), 245 CCC (3d) 546), it could not have implicitly authorised the search of Ms. Smith’s purse. Taken to the particular, the new investigative technique in this case is the procedure and software that gives the police the capability of extracting information and data from cellular telephones. This is the search contemplated by s. 487.01(1) and it would, absent the General Warrant, violate Ms. Smith’s s. 8 Charter rights. On the other hand, the search of Ms. Smith’s purse is not a new investigative technique, can be authorised under common law in certain circumstances (i.e., investigative detention, safety search, exigent circumstances, inventory search, etc.), and can likely be authorised by warrant issued under s. 487 of the Criminal Code. For those reasons, a search of a purse is not the type of search Parliament had in mind when it enacted s. 487.01 (R v TELUS Communications Co.). The General Warrant could only have been concerned with the authorisation of the investigative technique the police would use to conduct a search of Ms. Smith’s phone—i.e., to obtain the data on it. Accordingly, I am unable to conclude the General Warrant contained an implicit authorisation to search Ms. Smith’s personal property for the phone.
Section 24(2) Analysis
Seriousness of the Charter Violation
 ....As noted above, the law of search incident to arrest has never permitted the state to routinely search an arrested detainee’s personal property for weapons. That is, the officer’s testimony is plainly inconsistent with well-established legal principles limiting the scope of the state’s authority to conduct a search incident to an arrest.
 No matter how this is approached, the search was unlawful—it was not authorised by the search incident to arrest power or by the General Warrant. Ms. Smith was not arrested under suspicion of drug trafficking or a weapons charge. At the time the police searched her purse, there was no possibility of her using anything within it to threaten officer or public safety. The officer’s honest belief does not mitigate the severity of the breach of Ms. Smith’s Charter rights such that it may be characterised as minor or inadvertent. In short, I see no error in the trial judge’s conclusion as to the seriousness of the state’s conduct in this case. The seriousness of the breach weighs in favour of excluding the methamphetamine from the evidence available at trial.
Impact on the Charter Protected Interests of Accused
 The intention of the searching officer may well have been simply to locate a phone and weapons, but the focus under this factor is the impact of the breach on the Charter-protected privacy interests of Ms. Smith. In that regard, the fact is, in conducting the search, the officer went through everything within Ms. Smith’s purse. Notably, on her evidence, Ms. Smith had been living in a hotel for several days and so she carried most of her personal belongings with her. That fact heightens the already inherently intimate nature of a purse and its contents. In these circumstances, I unreservedly agree with the trial judge’s finding that Ms. Smith had a high expectation of privacy in her purse. I find no error in the trial judge’s assessment of the impact of the breach on Ms. Smith’s Charter rights as being serious. This factor weighs in favour of exclusion of the methamphetamine from the evidence at trial.
 Given the standard of review, I find the trial judge’s decision to exclude the methamphetamine from evidence is not subject to appellate interference.
R v Hasanov (ONSC)
[December 2/19] Judicial Obligation to Assist Self-Represented Accused - 2019 ONSC 6959 [P.A. Schreck J.]
AUTHOR’S NOTE: As legal aid budgets are shrunk, the Courts will see more and more self-represented accused representing themselves in serious and complicated proceedings. Defence counsel may eventually have to fix the errors that result from these sorts of proceedings. One way to do that is, where the facts permit, argue that trial judge did not sufficiently assist the accused to present their case appropriately before the court. Justice Schreck provides a good overview of the law and an application in an Impaired Care and Control/Refusal case.
 On May 26, 2016, a police officer, Cst. Taafe, came across the appellant sitting in the driver’s seat of a vehicle parked at the side of a road. The car was running and the brake lights were activated. Upon speaking to the appellant, Cst. Taafe noted an odour of alcohol and observed the appellant to have glossy eyes and slurred speech. The appellant admitting to having had one beer.
 As a result of her observations, Cst. Taafe decided to arrest the appellant for “impaired with care and control”. She walked the appellant to her police cruiser and noticed that he was unsteady on his feet. Once he was in the back of police cruiser, he fell asleep. When Cst. Taafe woke him up, he was argumentative.
 The appellant was taken to the police station and a demand was made that he provide breath samples into an approved instrument. According to the breath technician, Cst. Sanders, the appellant deliberately blew around the mouthpiece in order to avoid providing a sample. After several failed attempts, he refused to keep trying and was arrested for refusing to provide a sample. The appellant made no mention of having chest pains or any difficulty breathing.
 The appellant did not testify. He called one witness, Dr. Satiender Sharma, a respirologist, who was qualified to give opinion evidence. Dr. Sharma testified that he tested the appellant’s pulmonary function in 2018. The test results combined with the appellant’s self-reported history led Dr. Sharma to conclude that the appellant likely had significant problems with forced exhalation. He demonstrated symptoms of diaphragmatic spasms, which often result in chest pain and shortness of breath.
 In cross-examination, Dr. Sharma acknowledged that he had no practical experience with breath testing instruments and was not aware of how much breath was required to provide a suitable sample.
The Obligation to Assist a Self-Represented Accused
 The scope of a trial judge’s obligation to assist an unrepresented accused was described by Watt J.A. in R. v. Richards, 2017 ONCA 424 (CanLII), 349 C.C.C. (3d) 284, at paras. 110-112:
Where an accused is self-represented, a trial judge has a duty to ensure that the accused has a fair trial. To fulfill this duty, the trial judge must provide guidance to the accused to the extent the circumstances of the case and accused may require. Within reason, the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect: R. v. Chemama, 2016 ONCA 579 (CanLII), 351 O.A.C. 381, at para. 13; R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22; R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347....
The onus on the trial judge to assist the self-represented accused is a heavy one. This characterization means that it is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair to the self-represented accused: Tran, at para. 31; R. v. Dimmock (1996), 1996 CanLII 2292 (BC CA), 47 C.R. (4th) 120 (B.C. C.A.), at para. 20.
 Depending on the circumstances, the trial judge may be required to “explain the relevant law in the case and its implications, before the self-represented person makes critical choices”: Canadian Judicial Council, “Statement of Principles on Self-Represented Litigants and Accused Persons” (2006), at p. 7 (endorsed in Pintea v. Johns, 2017 SCC 23 (CanLII),  1 S.C.R. 470, at para. 4); R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 55 O.R. (3d) 161 (C.A.), at para. 33. Ultimately, the question to be determined is whether the trial was fair. Not every breach of a trial judge’s obligation to a self-represented accused will result in a miscarriage of justice: R. v. Forrester, 2019 ONCA 255 (CanLII), 375 C.C.C. (3d) 279, at paras. 17-18.
 Unfortunately, what the trial judge did not do is explain the essential elements of the offences to the appellant. For reasons I will develop, there were two reasons why such an explanation was required to ensure a fair trial in this case. First, neither of the offences the appellant was charged with were straightforward. One allowed the Crown to rely on an evidentiary shortcut while the other contained a reverse onus. Second, the record in this case, including the questions asked by the appellant in cross-examination and his closing submissions, made it clear that he misunderstood the law.
The Obligation to Assist in this Case
Care and Control
 In this case, there was no issue that the appellant was in the driver’s seat of the vehicle when he was first encountered by Cst. Taafe. Absent evidence to the contrary, the appellant was therefore deemed to be in care or control of the vehicle. However, there are several reasons to doubt that the appellant understood that the Crown was not required to prove that he had been in care or control or, more specifically, that he had actually been driving.
 On at least two occasions during the trial, the trial judge referred to the charge against the appellant as “driving impaired” or “drinking and driving.”
 The appellant’s cross-examination of Cst. Taafe suggested that he thought it significant that the officer had not seen him driving....
 Despite the appellant’s cross-examination of the officer and his questions about whether a witness saw him driving, he was never told that the Crown did not need to prove that he had been driving and that unless he could rebut the presumption, he would be deemed to be in care or control of the vehicle. In fact, the trial judge suggested otherwise in the course of explaining to him that it was his decision whether to testify:
There’s also the question of whether you testify. That’s entirely up to you. You’re not obliged to. The Crown has to prove the essential elements of the offence beyond a reasonable doubt. And right to the end of the evidence the onus is on the Crown to prove its case. That’s standard.[Emphasis added].
 The appellant was charged with refusing to comply with a breath demand contrary to s. 254(5) of the Criminal Code, which provided as follows:
Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
It is now well established that the burden of establishing a reasonable excuse is on the accused, who must do so on a balance of probabilities: R. v. Goleski, 2014 BCCA 80 (CanLII), 307 C.C.C. (3d) 1, aff’d 2015 SCC 6 (CanLII),  1 S.C.R. 399.
 It is clear from the appellant’s decision to call Dr. Sharma that his defence in this case was that he had a reasonable excuse in the form of a medical condition that affected his ability to provide a sample. Dr. Sharma’s opinion, however, was based in part on information he had received from the appellant, who did not testify.
 As noted above, in explaining to the appellant that it was his choice whether to testify, the trial judge told him that “right to the end of the evidence the onus is on the Crown to prove its case.” Once again, this was not entirely accurate. With respect to the issue of whether the appellant had a reasonable excuse, the onus was on him.
 It appears from the appellant’s closing submissions that he did not understand the consequences of his decision not to testify...
THE COURT: You want to – you’re giving evidence to me from you – where your chair is. You didn’t go into the witness box to give evidence, be subject to cross-examination. I’ve explained to you a couple of times it was up to you if you wanted to give evidence. You can’t just tell me your story now in your submissions.
While the trial judge did explain to the appellant that it was his decision whether to testify, this was the first time the distinction between evidence and submissions was explained to him. The difference between evidence and argument may not be clear to an unrepresented accused. In my view, it is advisable for trial judges to explain it: R. v. Mahadeo, 2014 ONSC 1327 (CanLII), 304 C.R.R. (2d) 307, at para. 25; Brier, at para. 24; Platnick v. Bent, 2016 ONSC 7474 (CanLII), 369 C.R.R. (2d) 243, at para. 14.
The Effects of the Omissions
 As noted earlier, while the scope of a trial judge’s obligation to assist an unrepresented accused varies with each case, “the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect”: Richards, at 110. In many if not most cases, this will require the trial judge to “explain the relevant law … before the self-represented person makes critical choices”: Statement of Principles, at p. 7 (emphasis added).
 A meaningful decision about whether to call evidence and, if so, what evidence to call will almost always require an unrepresented accused to have a full understanding about what must be proven in the case and by whom. The appellant did not have that knowledge. He did not know that the Crown was not required to prove that he had been driving, that he was required to establish that he did not occupy the driver’s seat of his vehicle for the purpose of setting it in motion, and that he bore the onus of establishing a reasonable excuse for his refusal to provide a breath sample. In my view, the appellant could not have a fair trial without an understanding of these basic principles.
 The appeal is allowed, the conviction with respect to Count 1 is set aside, the stay with respect to Count 2 is dissolved and a new trial is ordered on both counts.